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The theory of everything. Illegal dismissal from work, where to go if you were fired illegally? Solving problems with illegal dismissal

The term "illegal dismissal" is a common phrase used to describe situations when an employee was dismissed for no apparent legal reason or in violation of the termination procedure. In order to protect the interests of the employee, the legislator limited the grounds for dismissal and complicated the process of implementing this procedure. Illegal dismissal from work is a fairly common case.

To understand what the illegal dismissal of an employee is, you need to understand the legal grounds. These provisions are contained in labor laws and are not subject to expansion by the employer itself.

Grounds for dismissal

The list of reasons for dismissing an employee is rather small.

1. When the employing organization ceases to exist. The reasons may be different: bankruptcy, voluntary liquidation, termination of activities by the decision of a government agency, and so on.
2. When, for objective reasons, there is a reduction in the number of employees - staff at the enterprise. The reason, for example, can be the financial situation, a change in the type of activity, and the like.
3. If the employee is not qualified for the position held. This is revealed in the certification of employees. Moreover, if the company has a vacant position for which the qualifications are considered sufficient, then the employer is obliged to offer the employee this vacancy.
4. A change in the ownership of a business in itself cannot be a legitimate reason, but it is always accompanied by re-certification and redundancies.
5. When an employee does not follow the internal order at the enterprise many times.
6. If the position implies the financial responsibility of the employee, then he can be dismissed if the manager's trust is lost in case of repeated violations of the order of business in the position held.
7. Some businesses have ethics or safety personnel. If they violate the rules for which they are responsible, they can also be fired.
8. When an employee entered the position illegally: provided incorrect information or fake papers.
9. In case of a one-time gross violation of the rules at the enterprise.

It is illegal to fire a person for other reasons. Each reason for dismissal must be supported by appropriate documents or testimony.

What is a gross violation

The order at the workplace is established by the head, the legislator has limited situations that are recognized as a gross violation. This is done so that any minor violations or non-fulfillment of the employer's requirements do not become a reason for dismissal.

1. Absent from work for insignificant reasons or absence from the workplace for no particular reason for more than 4 hours in one shift.
2. Coming to work drunk, under the influence of drugs or psychotropic substances.
3. Disclosure of information that is an object of commercial or state secrets. Also disclosure of information about other employees, their personal data and other personal information.
4. Causing property damage to an enterprise by deliberate damage, waste or misinformation. The premeditated nature of such an act is the determining factor.
5. Violation of safety precautions and other labor protection rules, which entailed serious consequences or became the cause of an accident or emergency.

In addition to dismissal, employees who admit such situations are brought to financial, administrative or even criminal liability.

Loss of trust

The loss of trust by the employer implies the commission of a certain culpable act on the part of a financially responsible employee. However, the very fact of the act is not a reason for dismissal, unless, of course, it is qualified as a criminal offense.

• the employee did not take the necessary measures to minimize the consequences of his actions, did not notify the employer in time;
• the employee refused to provide the employer with information about his income and property.

However, this does not exclude the fact that the employer is obliged to prove the employee's guilt.

Special reasons for dismissal

The reason for the dismissal of certain categories of employees may be the following grounds:

1. non-compliance with the statutory provisions of the educational institution;
2. violent actions of a mental or physical nature against schoolchildren, students, etc .;
3. substitution by age.

1. disqualification for more than six months;
2. violation of the prohibition on the use of doping.

Such actions of these categories of workers are a reference to their professional unsuitability.

However, if their innocence is revealed, employees are entitled to proportionate compensation.

Examples of illegal dismissal

Termination of an employment contract for any reason not specified in the law is considered illegal. However, as practice shows, this is not an obstacle for employers to fire their employees.

• dismissal under duress;
• dismissal in violation of the procedure established by law;
• dismissal without proof of reason.

Dismissal under duress

Unfortunately, the mentality of the common people is such that, under minimal threats from the management, they write letters of resignation of their own free will. Such coercion is completely illegal.

However, in order to prove their case, the employee must present convincing facts of coercion. A simple statement by the employer about this can be regarded not as coercion, but as an offer.

An excellent solution would be audio and video materials that recorded this fact. But it's best not to succumb to such threats and persuasions from the employer.

Violation of the dismissal procedure

Even if there are legal grounds, violation of the dismissal procedure is a reason for the recognition of such dismissal as illegal.

• in case of staff reduction, employees must be notified no later than one month in advance;
• upon dismissal for other reasons, the employee must be notified two weeks in advance;
• you can not fire an employee who is on vacation or undergoing treatment;
• the employee must provide a copy of the order;
• after the dismissal of the employee, no later than two weeks, it is necessary to settle with him and return the work book.

Failure to comply with this procedure is illegal dismissal of an employee. The order on such dismissal, upon consideration by the court, is invalidated.

Dismissal without proof

Each reason specified in the employer's order of dismissal as a basis is confirmed accordingly.

1. When the dismissal is justified by repeated violations of the order, each of them must be marked with a reprimand or other disciplinary sanction, which are reflected in the registration book of orders of the head. In this case, a copy of each order must be handed over to the employee.
2. Material harm caused by the employee must be recorded by the assessment report and by the order of the head.
3. The absence of an employee at the workplace must be recorded in the attendance sheet, which is maintained by the accounting department.
4. The inconsistency of the employee with the position held must be confirmed by the conclusion of the attestation commission.
5. The reduction in staff should be reflected in the accounting records and the decision of the head of the enterprise.

Failure to properly confirm the grounds entails the invalidity and unlawfulness of the dismissal.

Where to complain?

Of course, when an employee is illegally fired, he begins to seek help from government agencies. Protecting the interests of the employee is the highest priority for labor law. So what to do and where to go?

• trade union of the enterprise;
• federal labor inspectorate;
• bodies of the prosecutor's office;
• district court.

Each of these institutions has a mandate to protect the interests of workers.

Union

Almost every permanent employee of the enterprise is a member of the trade union. Such an employee cannot be fired without the consent of the trade union body. If this happened, then a claim must be sent to this authority.

The trade union, in turn, is entitled to file a complaint with the Labor Inspectorate, which may compel the employer to return the employee to his position.

Labor inspectorate

As already mentioned, the Federal Labor Inspectorate, or as it is also called - "labor police", has the power to coerce the employer. In addition, this body can bring the leader to justice.

However, the activity of the inspection ends with the verification of the fact that the grounds for dismissal comply with the requirements of the law, as well as compliance with the legal procedure. Other facts: the testimony of witnesses, the illegal reduction, this body does not study.

Prosecutor's office

This body has general oversight powers, and in case of violation of legal requirements, it should be contacted first. In addition to checking the documentation, the prosecutor's office can carry out some investigative measures to establish the truth. Therefore, this body should be contacted if there is a fact of distortion of information, presentation of unfounded accusations to an employee by the enterprise, and so on.

Court

As practice shows, the highest efficiency in solving cases of illegal dismissal is given by filing a statement of claim in court. Most court decisions in such cases are in favor of the employee.

The statement of claim is submitted to the district court in the jurisdiction of which the enterprise is located. The judgment is binding on everyone, and its execution is under the control of the bailiffs.

It is necessary to apply to the prosecutor's office or labor inspectorate while simultaneously filing a claim with the court, since the first two bodies do not thoroughly study the issue.

Terms of application

Timing is also important when challenging illegal orders to dismiss an employer. Passing them out deprives the employee of the right to appeal against unlawful deprivation of work.

1. The Federal Labor Inspectorate must file a complaint within one month from the moment the employee receives a photocopy of the dismissal order. It is impossible to extend this period.
2. A claim to a judicial authority must also be filed no later than one month. However, if the employee succeeds in presenting evidence that he found out about the illegality of his dismissal much later, and applies as soon as he found out, then the term may be extended.

Missing the allotted time and the absence of the fact of the appeal does not relieve the employer from liability for the unlawful dismissal of an employee.

Recovery at work

In the event that the court recognizes the dismissal of an employee as illegal, the return to work takes place as follows:

1. Together with the court decision, the court issues a document for the executive body, which must immediately be sent to the bailiffs. The head of the enterprise is obliged to execute the decision no later than one day after that.
2. The hiring of another employee or the fact that the position has been made redundant does not preclude the return of the unlawfully dismissed employee.
3. It is necessary to ensure that the manager cancels the termination order, and does not reinstate the employee. This is important when receiving compensation for involuntary unemployment.
4. The person must be notified in writing of the start of work. In the same letter, you must indicate the cancellation of the resignation order.
5. The inscriptions in the labor book are being corrected. The letter of dismissal is invalidated. Also, a person has the right to update the work book with the restoration of all existing records.
6. None of the working conditions in which the employee worked prior to the illegal termination of work, for any reason, does not change.
7. The employee's personal file at the enterprise is also restored and corrected, with a separate note on the court's decision.
8. The work record is corrected and supplemented. The time during which the person was unemployed is counted as seniority with the corresponding remuneration.

The employee has the right to compensation for all types of damage caused to him by unlawful deprivation of a job. The fact of compensation for damage and the return of an unlawfully dismissed person does not exempt the employer from liability for illegal actions.

Thus, every unlawfully dismissed person is protected by the law. It remains only to competently exercise their legal rights. A qualified lawyer can help you with this. The most important thing is not to give up and not succumb to the persuasion of the leader, who can end everything peacefully, even during the trial.

In all countries, and ours is no exception, there are cases when the management makes an unlawful decision to fire an employee or transfer him to another position. And the employee does not want to leave the cozy place at all. He really liked the work, especially since it was not far from home. Yes, and there was a terrible resentment from the unfair treatment on the part of the authorities. Illegal dismissal must be challenged without fail.

Any laid-off person who believes that he or she has been treated unfairly has the right to reinstatement. Knowing your rights is very important, and you need to fight for them, even in court. You can familiarize yourself with the rules for dismissal and what grounds for this exist in Chapter 13 of the Labor Code of the Russian Federation.

When dismissal is illegal

In the event that an employee conscientiously performed his work, did not skip, did not come to work while drunk, did not steal anything and did not violate safety procedures, his dismissal will be considered illegal. Dismissal is also considered illegal if:

• the employee was not warned in advance, for example, about the reduction of the staff at the enterprise;
• if the specified reason for dismissal does not correspond to reality and is indicated in the order for a completely different reason;
• upon dismissal of an employee for the fact that he does not correspond to the position held and does not cope with his duties, the employee was not properly certified;
• an employee is fired due to poor health, he is often sick and cannot cope with his work, a medical commission has not been held, which can confirm this;
• the employee was fired, allegedly due to staff reduction, but in reality there is no reduction;
• the employee has not been paid the salary due to him.

In the event that an employee commits an official crime or some serious misconduct, the boss may offer him to resign on his own. In this case, he is doing you a favor and you must definitely agree. But if the dismissal is illegal, and the boss offers to write a statement of his own free will, then you should know: you cannot write it, since the court will then not accept your claim for consideration.

However, if it is proven that such a statement was written under pressure and duress, the judge should take into account and try to understand the true reasons for the dismissal. Most employers make mistakes in the preparation of such documents.

Their illiteracy in legal intricacies and unwillingness to use the services of professional lawyers leads to the fact that it is easy for a competent lawyer to prove violation of the employee's rights and demand significant compensation in the form of debt payments for the period of the employee's forced downtime, as well as demand payment for moral damage and payment for the services of a law firm ...

Complaint to the state labor inspectorate

When an employee is fired, he writes a statement. Often employers are asked to write a letter of resignation of their own free will. If you think that the dismissal is illegal, then in no case should you write it. After the order of dismissal is issued, you can contact the labor inspectorate. This is done simply. A statement is written in which all the circumstances of the case are clearly indicated, without speculation and your judgments.

Your application must be reviewed within 15 days. The decision will be made on time if the employer has clearly violated labor laws. In case of difficulties arising in the consideration of the complaint, the case may be delayed, but this cannot be allowed. After the expiration of one month, it is no longer possible to file a claim in court. So the choice is yours. Or go to court right away, and it will be longer and more expensive, but there are more chances to return your position and recover in the workplace, or first try to act through the state labor inspectorate. It will be much cheaper, but there are some nuances. The case can be delayed or rejected, and the inspectors of the service are not as professional as the judges.

They have the right to conduct an administrative check of the incident at the enterprise, revise all documents and contracts, and familiarize themselves with the orders. For the rest, namely, reinstatement in the workplace, payment of any money and compensation, the inspector will still advise you to contact the district court. If, after the expiration of the due period, no decision is made, then there is no more time to wait, you need to urgently file a lawsuit for illegal dismissal.

It should be less than a month from the order of dismissal to filing a claim for reinstatement. Later, the court considers the issue only in case of extraordinary reasons for the delay. A prolonged examination of the case by the inspectorate is not considered for such a reason. You can first contact the labor inspectorate, and after 15 days, immediately file a claim in court, at the same time. Questions on reinstatement to work in judicial practice are considered within a month.

Pros of going to court

Consideration of labor disputes in court has a number of advantages. You need to know them in order to make the right decision whether to seek help or not. A claim is filed for reinstatement at work in court at the location of the enterprise. After the application is filed, an executive judge is appointed to listen to your claims and review the evidence base. The proceedings are carried out with a thorough study of all controversial issues, with the summons and interrogations of all parties to the labor dispute.

The judge considers the basis for Only in court can you tell in detail about the procedure for dismissal, about all violations committed by the employer during this period.

Another positive point to take legal action. The unlawful dismissal of an employee implies that the employer bears the costs involved. Based on Article 393 of the Labor Code of the Russian Federation, a dismissed employee is completely exempted from paying state duties and court costs. Also, a pleasant moment will be the opportunity through the court to demand from the employer compensation for moral damage and compensation for the loss of wages for the entire period that the plaintiff did not work.

Cons of litigation

The only drawback will be the duration of the complaint. Especially if the controversial issue has little evidence. In case of a gross violation of labor legislation, reinstatement to work in judicial practice is easier, less time is spent on clarifying the circumstances of the case. If there is no valid written confirmation of the violation by the employer of the rights of his employee, then the consideration of the case may be delayed.

But recently, judges have been trying to resolve such disputes about reinstatement at work faster, within a month. The process can be delayed only in the case of very controversial issues. If the obviousness of the illegality of the employee's dismissal is great, then the case for reinstatement to work in court practice is considered much faster.

Preparing to go to court

Before applying for reinstatement at work by a court decision, an employee should carefully prepare in advance. Usually they are not fired abruptly, but the person feels and understands that everything leads to this. At the time of dismissal, the employer is unlikely to want to meet you halfway and issue all the necessary documents that the judge will require to have. When signing an employment contract, one copy must be in the hands of the employee.

The contract must indicate the salary you will receive. If cash payments are not stipulated there, but you need to take a certificate from the place of work about the salary for six months. The judge will need this if the employee wants to pay the debt.

It is advisable to try to talk to the manager for the last time before filing an application with the court, to explain your reasons for reluctance to leave the workplace. You also need to warn him about your desire to go to court for reinstatement at work according to the Labor Code of the Russian Federation. In the practice of labor disputes, there were cases when the manager did not want to check his enterprise and study the documentation by court assistants, and accepted an amicable agreement to restore the employee to his previous workplace. Even in such cases, the issue of debt payments was resolved.

What documents are required to go to court?

If it was not possible to agree with the manager and solve the problem of returning to the previous place of work, then you need to file a claim with the judicial authorities at the place of registration of the enterprise. Sometimes the case can be sent to the court at the place of residence of the plaintiff. When filing a claim, in addition to the application, the following documents must be submitted:

• work book (it must contain a record of the number of hiring and dismissal, with order numbers);
• a copy of the employment contract concluded upon admission to this place of work;
• copies of orders with numbers (about hiring, about dismissal, about reprimands or penalties, if any);
• certificate of receipt of wages for the last six months.

You can also submit any documents that prove that you worked in this company. Each document on hand must be filed to the file. This is very important, since the employer can calmly declare that he is seeing you for the first time, and you did not work for him.

Individual labor disputes

According to the court, any employee who considers his dismissal and transfer to a lower-paid position to be illegal can apply to the court. He can, through the court, demand compensation for the period that he was forced not to work or received less wages. Employees who do not agree with the wording of the reasons for their dismissal in the work book can file a claim.

Also, an employee of an enterprise can complain in court against a boss who did not respect confidentiality when processing employee data. The issues of unlawful refusal to hire a person, discrimination of his rights on the basis of nationality, pregnancy or the fact that a woman has a small child are considered.

When conducting a case, the court listens to different parties, reviews all the documents, court assistants are sent to the enterprise to check all the documentation. Also, if necessary, various professional experts, various witnesses can be involved, certifying your work activity in this enterprise. The employee in this process is called the plaintiff, since he has filed a claim, and the manager or private entrepreneur is considered the defendant.

Making a decision by the court

Upon submission, the employee plans that the court reinstatement decision will satisfy his demands. After a careful study of the case materials, the judge makes a reasoned decision, confirmed by labor legislation, indicating the chapters and articles of this code.

In the event that the plaintiff makes claims for compensation for material damage or other compensation, the court decision must clearly indicate the amount of the due payment. Since the trial can last for a long time, according to the law, it is decided that the compensation for the dismissed employee should not exceed the salary for six months. If the plaintiff demands additional payments, for example, payment of a lawyer or compensation for moral damage, the judge also determines and clearly indicates this amount. Since in an individual labor dispute, the state duty is not collected from the employee, 50% tax is levied on additional payments at the request of the plaintiff.

When reinstating at work in court, a person has the right to demand compensation not only for the remuneration of employees of the Bar, but also for the suffering caused to him, both physical and psychological. The degree of guilt of the defendant is also taken into account. But usually such compensation is small.

Work recovery procedure

If the consideration of labor disputes in court ends with a decision to reinstate an unlawfully dismissed employee at work, then the employer is obliged to reinstate him in the same position on the same day. In this case, the employee submits a court decision and writes an application for reinstatement at work.

An order is issued on reinstatement at work by a court decision and is given to the employee for signature. After that, it is necessary to make an appropriate entry in the work book: the entry under No. (the entry number is put, it is in this work book) is invalid, restored at the previous job. But if the employee does not want to spoil his impeccable reputation with such an entry in the book, he has every right to demand that he be given a duplicate without corrections.

In the event that the employee was transferred to a lower-paid position, then with a positive decision of the judge, he must return to his previous place of work. If the reason for dismissing an employee from work was incorrectly indicated, the person suffered and could not get another job because of this? Through the court, he was also entitled to monetary compensation in the amount of his salary for six months. Also, the court will oblige the manager to change the objectionable wording in the work book.

But after the court's decision on reinstatement to work, judicial practice shows that not everything goes so smoothly. Usually, a person who has achieved his requirements in this way is not very welcome at his old place of work. The moral atmosphere is so heated, and the boss's nagging becomes so critical that a person often then independently comes to a decision to quit and write. The employee must understand this, and after a court decision and receiving monetary compensation, start looking for another job.

Illegal dismissal for redundancy

When the company plans to reduce staff, the head, according to the law, must comply with all the rules. To begin with, it is necessary in advance, namely two months in advance, to warn the employee about the changes in his life. During this time, a letter is also submitted to the employment service about the need for this period to provide a person with an appropriate place, according to his experience, length of service and education.

Also, the boss can offer a different position, if, of course, there are vacancies. The employer must pay compensation to the employee if the forced dismissal occurred ahead of time. Failure to comply with these rules will result in illegal dismissal due to redundancy.

Categories of citizens who are illegally reduced

There are several categories of workers who, according to the law, in any case do not have the right to fire, let alone cut:

• pregnant women;
• single mothers with a small child in their arms (up to 14 years old) or raising a disabled child (up to 18 years old);
• mothers who have a child under 3 years of age;
• guardians of disabled people under 18 years of age, who are considered to be one working in the family;

• a father who has a young child in education, but does not have a mother;
• a father who is the only breadwinner in a family with three young children;
• people who, at the time of downsizing, are on planned vacation or on vacation at their own expense;
• people who are on sick leave at the time of the reduction;
• if the employee with whom the contract was signed is not yet 18 years old, then he can be dismissed by agreement with the labor inspectorate or the juvenile affairs inspector.

In any case, upon dismissal, an employee must know his rights, be able to act professionally, defend himself, if necessary, in court. If the Labor Code is not complied with at work and the authorities reign supreme, then the punishment must be followed without fail.

The work collective must unite and defend the rights of employees. Unfortunately, in our country, trade union organizations do not have the same strength as in other states, and often workers cannot get the support they need. This is what the judicial authorities are for. You can always file a claim in court. Illegal dismissal must be punished.

Many are worried and afraid to apply, and such processes are very rare, however, as practice in other countries shows, if you wish, you can always prove your case.

Illegal dismissal has become a practice for our country. Employees who encounter him are most often interested in whether they can recover to their previous place of work or receive legal compensation. Only professional legal assistance upon dismissal will help to defend the legal rights of an employee in such a situation.

Illegal dismissal of an employee - the main types

Dismissal of an employee without his consent or in violation of the procedure established by law is illegal.

Illegal dismissal from work is classified according to the type of violations committed. In particular:

• dismissal on unlawful grounds;
• dismissal on invalid grounds;
• an indication of a different basis for dismissal than what was in reality;
• dismissal with the proper registration of misconduct and violations of the employee's labor duties (absenteeism, appearance at the workplace while intoxicated, violation of labor protection requirements, theft);
• dismissal with refusal to pay wage arrears;
• dismissal on reduction without actually carrying out the reduction procedure;
• violation of the procedure for warning the employee about dismissal (liquidation, reduction, etc.);
• dismissal for inconsistency with the position or qualifications, if the preliminary certification of the employee has not been carried out;
• dismissal for non-compliance with the position or work for health reasons, when a medical examination has not been completed.

Often the employer invites the employee to write a letter of resignation upon the fact of his committing a disciplinary offense. The employee can agree to this, or, if he is firmly convinced that he is facing a case of attempted illegal dismissal from work, refuse and not sign any documents.

Many employers take advantage of the ignorance and ignorance of their employees in the field of labor law. Often the illegal dismissal of an employee is carried out without his fault, on insignificant grounds, due to the legal ignorance of officials making the appropriate decision.

Legal assistance on illegal dismissal

Prompt consultation by phone or in the office of the bureau

Labor lawyer - specialist assistance in illegal dismissal

Consideration of cases on illegal dismissal of an employee

Assistance in the event of dismissal is provided by two instances: the state labor inspector and the court. The first has the right to carry out inspections of the observance of the rights of the employee, to issue instructions for eliminating the identified violations. To do this, you must write an application to the labor inspectorate.

To go to court, a claim for illegal dismissal is drawn up, evidence is being prepared. It is reasonable to seek legal assistance and legal advice on labor issues from a professional lawyer who can achieve a favorable outcome for the employee in the case under consideration.

Legal consequences of illegal dismissal

• Recovery at work.
• Payment of compensation without reinstatement at work.
• Change of grounds for dismissal of an employee. If, as a result of an incorrectly chosen reason for dismissal from work, the employee for some time could not get a new job, then he is paid compensation in the amount of the average earnings for the lost time;
• In the event of unlawful termination of a fixed-term employment contract, the court may oblige the employer to reinstate the employee at the previous place of work in the previous position for a period until the expiration of the contract. If the term expires when the case is being considered by the court, then the basis for dismissal from work is changed. When reinstating in the same place, the experience becomes continuous.

If the court has recognized the fact of illegal dismissal from work, then a corresponding entry is made in the work book, as well as an entry on the employee's reinstatement at the previous workplace.

Illegal dismissal from work also implies compensation for moral damage to the employee, and regardless of the claim he himself has set, solely by a court decision.

Lawyer assistance

If the employer delays in reinstating the employee, the competent authority makes a decision to pay the employee compensation for the entire delay in the execution of the decision. In the absence of valid reasons for the delay in the execution of the court decision on the illegal dismissal of the employee, the employer pays a fine (on the basis of Article 85 of the Federal Law "On Enforcement Proceedings").

Illegal dismissal from work is not yet a sentence. We will help you to defend your legitimate interests, and will not allow the arbitrariness of employers.

In law. In cases of unlawful dismissal, you have the right to reimbursement of financial costs and legal costs, as well as compensation for non-pecuniary damage by collecting them in court.

In accordance with international law, as well as the constitution of the state, everyone has the right to work and remuneration, which is inalienable. Almost the entire population of the country uses this opportunity, earning for themselves and their families the means to live and receive other benefits. However, in the course of work, there are often violations of workers' rights by the employer. One of them is illegal dismissal from work. What, then, can the person whose inalienable right has been violated? What illegal dismissal from work according to the Labor Code of the Russian Federation can be appealed in favor of the employee and by what authorities? More on this later.

Dismissal: a general concept

The process of dismissal from work is an act of terminating a previously concluded employment contract between an employer and an employee. The legislation provides for the reasons why an employee may be dismissed. The most common among them is the presence of their own desire on the part of the employer or the employee himself. In addition, there are a number of other reasons why an employee can be fired - all of them are detailed in the articles of the Labor Code. In this normative act, for each reason for dismissal, a specific article is allocated, which sets out the procedure for breaking off labor relations. In the event that an employee was dismissed for no reason or any conditions were violated by the employer, this procedure is considered illegal and subject to appeal at the request of the employee.

Reasons for dismissal

The dismissal procedure can be carried out for any of several circumstances provided in the text of Article 77 of the Labor Code of the Russian Federation. Illegal dismissal from work will be recognized as such when the employer indicated any other reason not provided by the legislator in this article, or violated the terms and procedure for performing the prescribed procedure.

The legislation contains a whole list of reasons for dismissal, among which, in practice, the phrases "of their own free will" (employee or employer), as well as "by agreement of the parties" are often used. The reason for the termination of the employment contract is also considered the employee's refusal to move to a permanent place of residence in another locality in connection with the relocation of the actual workplace.

Often, the dismissal of an employee does not become a reason for the end of his labor activity at the enterprise - this can be just a stage in his advancement up the career ladder, since in order to accept an employee to a higher position, he must first of all be dismissed from the old one. In this case, termination of the employment contract is considered a simple formality.

The termination of an employment contract is also a reason for its termination. In this case, the parties can come to a general agreement on its complete termination or extension for a specified period.

Examples of illegal dismissal

In what situations does the injured party have the right to sue for illegal dismissal from work? For all that are not provided for by articles of labor legislation.

An example of this would be dismissal without the correct registration of disciplinary offenses, on the basis of which the employment contract was terminated. So, for example, dismissal from work for absenteeism will be considered illegal when the fact of violation of discipline was not documented or indicated in an inappropriate manner.

If the manager refuses to pay the employee wage arrears, such dismissal will also be recognized as illegal. Before terminating the contract with the worker, any employer is obliged to pay off the wage arrears in full, regardless of the pretexts that have arisen.

In the event that an employee was dismissed from the enterprise under the wording of staff reduction or the number of employees, but in fact this activity is not being carried out, then such dismissal from work is illegal. It will also be recognized as such if the organization is liquidated, but employees were improperly notified of an upcoming event.

One of the conditions for the dismissal of an employee is his inadequacy for the position held. If such a wording is indicated in the work book, however, certification with the participation of a special commission was not carried out (a protocol must be drawn up about this), then dismissal from work is illegal. A similar situation may arise with the wording about the inconsistency of the position due to medical indicators: if there is no certificate of medical examination, then you can safely submit an application to the court - the dismissal was made illegally.

Who can't be fired

The legislation prescribes a complete list of persons whose dismissal is possible only in the event of the complete liquidation of the institution or enterprise. In other situations, their dismissal is considered illegal, and employees have every right to go to court for protection.

This category includes single mothers who have children under the age of 14 on their support. If such a child is disabled, then the age limit is increased to 18 years. This rule also applies to persons who have a child under the age of 3, and in this case, the gender of the employee does not matter - this rule applies to both men and women.

The legislation states that the dismissal of pregnant women, as well as minor workers, is unacceptable.

Illegal dismissal from work: what to do?

After a person whose rights have been infringed upon understands the fact that his dismissal from work is illegal, he has the right to defend his rights. To do this, an employee can apply to the judicial authorities with a claim for reinstatement at work in case of illegal dismissal under the Labor Code. In the course of the trial, subject to proof of guilt on the part of the employer, the illegally dismissed employee must be reinstated in office and paid compensation in the agreed amount.

It should be noted that in today's reality the court is the only fair body in which you can appeal against such a decision of the head of the enterprise and punish him accordingly.

Preparing to go to court

Before applying to the judicial authorities with an application for reinstatement to work after an illegal dismissal, an employee must thoroughly prepare for the upcoming process. First of all, you should pay attention to the evidence base on the basis of which the hearing will be conducted and the judge's decision will be taken.

First of all, you should pay attention to the availability of a second copy of the employment contract, which can be requested from the employer in advance even before the start of the trial. It is best to pick up the second copy immediately after hiring. The text of the contract must indicate the size of the average wage. In the event that this is not in the text, you can request a certificate of your monthly income from the accounting department - this information in court will be necessary in order to calculate the amount of compensation for illegal dismissal from work.

In the process of hiring and firing, appropriate entries must be made in the work book. Any employee is obliged to ensure that they are drawn up appropriately - with truthful data, otherwise it will be quite problematic to defend their rights in court.

The legislator also provides for the possibility of applying to the court for persons who did not work under an employment contract, since the fact of the beginning of the fulfillment of the agreed obligations is already considered the conclusion of the contract. However, in this situation, the employer may deny that this employee was at work and was engaged in the performance of his duties, if this is not documented.

What can be required from an employer

In case of illegal dismissal of an employee from work, he has the right to file a lawsuit with certain requirements. What can they be?

First of all, the employee has the right to demand his reinstatement to the position with the previous monthly salary. In addition, any employee whose rights have been violated has the opportunity to claim wage arrears or reimburse moral damage. If necessary, the dismissed person has the right to request a change in the data entered in the work book - this action is especially important for further profitable unhindered employment.

Often there are situations when, in addition to the demand for reinstatement at work, dismissed employees declare the need to pay them money during the forced absence from work. The amount of such compensation upon reinstatement at work (in case of illegal dismissal under the Labor Code) is determined on the basis of monthly salaries, which must be reflected in the text of the employment contract.

Documents required for filing a lawsuit

Before applying to the judicial authorities, a dismissed employee must collect all the documents that can help him achieve the protection of his infringed labor rights.

In the general package, he must provide a statement of claim, which necessarily reflects all the conditions and requirements. In addition, the court must provide confirmation of the fact of payment of the court fee, as well as photocopies of identity documents.

In the package of evidence, you must provide all documents that confirm the illegality of dismissal from work. Lawyers recommend attaching a copy of the employment contract, certificates, which reflect the size of monthly salaries, as well as photocopies of the pages of the work book, which reflect all the processes of activity at the enterprise. In addition to all of the above, you need to collect a solid evidence base, which will reflect the illegal actions of the employer.

Application deadlines

As for the deadlines for filing a statement of claim to protect their rights in court, the legislator gives the employee a month from the moment when he got acquainted with the order of dismissal. However, this period can be extended in the event that timely treatment was prevented by illness, a long process of studying the circumstances of the fact, as well as in the presence of other weighty circumstances, which the court recognizes as such. It should also be remembered that any such fact must be documented.

If we talk about the terms of reinstatement at work in case of illegal dismissal, then in the presence of a writ of execution, this court decision is made immediately. If the employer refuses to take the prescribed actions, a fine will be imposed on him. Subject to double evasion of the obligation, the performer is obliged to petition the court for the criminal liability of the guilty person. When all the requirements specified in the writ of execution are fulfilled by the employer, an act is drawn up about this fact and transferred to the service for the enforcement of court decisions. Only if it is available, the proceedings are considered closed.

The legislator also notes that the procedure for reinstating an employee to his previous position is marked not by the date when the decision was made, but by the date when the employee was dismissed on unlawful grounds.

What information needs to be indicated in the claim

The text of the statement of claim must contain certain information that directly relates to the question posed. In particular, the plaintiff must indicate what is the illegality of illegal dismissal from work and the article of the Labor Code on the basis of which the appeal is made. In addition, in the statement of claim, it is imperative to indicate information about the defendant and your data.

In the text of the claim, you should definitely indicate your requirements that are presented to the head of an enterprise or organization - the list of possible ones is presented above.

If reinstatement at work in the event of illegal dismissal at the previous enterprise seems impossible due to its reorganization, the plaintiff has the right to present all claims to his legal successor, if any. In this case, it is necessary to indicate in the text of the application information about the same legal successor and indicate the grounds for filing a claim.

Who has no right to challenge the dismissal

The legislation provides for a number of positions, the dismissal from which cannot be challenged in court. This exception applies to employees of the prosecutor's office, as well as those who hold office in elective office. If the resignation was illegal, you can dispute this fact in a higher department, for example, in the Prosecutor General's Office of the Russian Federation.

Practice of court decisions

As the court practice shows, the court leaves almost all the statements of the plaintiffs about their illegal dismissal from their jobs. However, workers in the judiciary also note that questions about the legality of dismissal of a worker are raised relatively infrequently. In the opinion of many judges, this circumstance is due to the lack of understanding among the population about their labor rights. In this regard, many workers in the field of jurisprudence recommend increasing the level of legal education among the population of Russia.

One of the main requirements of a dismissed employee, presented in the lawsuit, is his reinstatement to his position with payment of compensation for the entire period of the forced absence (no more than one year). As noted in the legislation, it is calculated based on the employee's salary for the last two working months. It often happens that after the fulfillment of the presented requirements, the employee leaves at his own request in compliance with all the necessary procedures.